APPEARANCE OF AN ATTORNEY AS WITNESS FOR HIS CLIENT--Where an attorney
realizes shortly before trial that it will probably be necessary for him to become a
witness and his attempts for postponement fail, it is not improper for him to continue to
represent his client thereafter, nor after he testifies, in situations where the necessity
arises during the procedure preliminary to the actual trial, provided he did not know such
would be the case at the time he accepted the employment. Under the circumstances, the
preliminary procedure is considered as part of the trial.

A suit was filed in the latter part of December, in which the Defendant filed a
cross-action for rescission or the sale of real estate on the grounds of certain alleged
misrepresentations. Plaintiff had the case set for trial on the following February 18th.
Attorney for Defendant had had a conversation with Plaintiff at the time the sale was
consummated the previous August. Plaintiff's deposition was taken on January 9th. At that
time Plaintiff testified contrary to the belief of Defendant's Attorney as to the date and
substance of said August conversation. At the time Defendant's attorney accepted
employment he had no reason to think Plaintiff would deny the substance of such
conversation but considered the matter had been so fully discussed that the facts were
beyond dispute. After the deposition was taken, Defendant's attorney realized he would
probably have to testify at the trial and endeavored to secure a postponement, but such
postponement was successfully resisted by Plaintiff. On the trial, Defendant's attorney
did testify to the substance and date of such conversation, but did not testify concerning
the main issue of the rescission action, namely, the alleged misrepresentations, as to
which he had no knowledge. Said attorney continued to represent Defendant to the final
termination of the trial.

Was it unethical for said attorney to continue to represent Defendant after he learned
he would have to testify on the trial, and after he had testified?

Opinion

Texas Canon 16 reads: "It shall be unethical
for a member to accept a case when he knows that he will be a material witness, but a
member may testify to any matter without being guilty of misconduct if the necessity
thereof is occasioned during the trial of the case" (emphasis added).

A majority of the committee members feel that since said attorney did not know he would
have to testify when he accepted the case and the necessity arose shortly before the case
actually went to trial on its merits, and the attorney handling the case was familiar with
it, and the Defendant probably lacked funds with which to readily secure other counsel,
and a postponement of the case could not be secured, he was not in violation of Canon 16,
under the particular facts of this case, and that, under these circumstances, the term
"during the trial" should be given a liberal construction so as to embrace
procedure preliminary to the actual trial.

It was recognized by all the members that American Canon 19 is much stricter than Texas
Canon 16, and that under the opinions (especially No.
50) of the American Ethics Committee there would be a clear violation in the instant case.
(5-3)